EPA ‘Crucifixions’ Nothing New

The blogosphere is all atwitter this week after the disclosure of the “crucifixion” video, in which the director of U.S. EPA Region 6 in Texas urged his staff to “crucify” oil and gas companies in enforcement actions.

In the video, disclosed by U.S. Sen. James Inhofe (R-OK), Regional Director Al Armendariz said:

It was kind of like how the Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw and they’d crucify them. And then you know that town was really easy to manage for the next few years. And so you make examples out of people who are in this case not compliant with the law. Find people who are not compliant with the law, and you hit them as hard as you can and you make examples out of them, and there is a deterrent effect there.

Sen. Inhofe calls this a “’rare glimpse’ into the Obama administration’s mindset” and is launching an investigation. EPA Administrator Lisa Jackson said: “I have spoken to Dr. Armendariz, I have made clear to him that I am glad he apologized because his comments were disappointing, they are not representative of the agency, they don’t reflect any policy that we have, and they don’t reflect our actions over the past two years.”

Don’t make me laugh.

Armendariz’s language was unusually blunt and candid. But, as I discussed on the Charlie Sykes radio program Thursday on WTMJ-AM in Milwaukee, Armendariz’s enforcement strategy is nothing new for EPA, which has been crucifying its enforcement targets for decades. These targets include many of the clients I’ve represented in 25 years of practicing environmental law.

“Your client is a baby-killer,” one EPA lawyer told me.

We were meeting about 14 years ago to discuss resolving my client’s alleged environmental violations. What were those violations? The client was a small-scale rental apartment management firm, required by law to hand out lead-based paint warning booklets to every tenant at the lease-signing and document each hand-out on a particular EPA form.

There was no evidence of flaking lead paint or other risky circumstances in the apartments. My client still had to hand out the booklets, though – and had handed out thousands of them. They even had the photocopying invoices to prove it.

But the firm made a mistake. It had tenants put their initials in the place on the form where EPA required full tenant signatures and had tenants sign their full names where EPA required only initials. The result? EPA wanted millions of dollars in penalties.

Around the same time, EPA targeted a landfill in a city in northern Indiana, where municipal waste was disposed of. Almost every business in the city was notified of their potential liability, including the grocery store which had thrown away wilted lettuce and the stationary store which had tossed old greeting cards. My client had thrown away textiles identical in composition to the polyester pants my father always wore after he retired. EPA sued dozens of such businesses, though. And the judge made it plain he thought all the parties were “polluters” and said he’d deny any defenses we tried to raise in court. My client was nailed for $150,000.

EPA targeted the scrap metal industry ten years ago, in which scrap dealers purchase scrap metals and extract metals like stainless steel, brass, copper, aluminum, lead, zinc, nickel, iron, and steel. These are then sold for recycling. This was a $65 billion industry in 2006, and it conserves energy and natural resources.

But EPA began numerous enforcement actions against participants in this industry under the Superfund laws, which impose strict liability on those who arrange for disposal of hazardous waste or do the actual disposing. In EPA’s view, companies selling scrap metal for recycling were actually “arranging for disposal” of hazardous substances at a Superfund site.

In this case, the property of a scrap metal aggregator who collected scrap metals from dozens of dealers had become contaminated with metals the aggregator carelessly stored. And scrap metal dealers were disposing of hazardous substances by selling them to the aggregator.

My client, a mom-and-pop scrap dealer who sold metals to the aggregator, got tagged for a $50,000 share of the costs of cleaning up property owned by the aggregator. They went bankrupt paying it.

“And then we wonder why aren’t you investing more tin this country why aren’t you creating jobs in this country?” Sykes said.

Maureen Martin passed away in February 2013. She was a long-time senior fellow for legal affairs at The Heartland Institute. Formerly a newspaper reporter, she became an attorney and has practiced law for nearly 30 years, generally concentrating in litigation and environmental law. She was an adjunct professor of environmental law at Loyola University Chicago for more than 10 years. Her op-eds were published in the Wall Street Journal, Investor’s Business Daily, the Washington Times, the Chicago Sun-Times, and the Chicago Tribune, among other outlets. Her favorite lawyer joke: “What’s the difference between a carp and a lawyer?” Answer: “One’s a scum-sucking bottom feeder; the other’s just a fish.”